Thursday, January 17, 2008

Appeals to Human Rights: The Next Battlefield?

In yet another sign that the water will never be safe when it comes to proposals to grant copyright owners ever greater rights beyond the current Incredible Hulk level, the groundwork is being laid for a new source of law: human rights. In this battle, the push may be limited to individual copyright owners, although recently at an International Governance Forum meeting in Rio on the proposed broadcast treaty, a speaker from the Council of Europe, billed as an "international human rights attorney" stated that intellectual property rights are human rights. I confess to being moved to tears by European human rights attorneys taking up the cause of very large U.S. broadcasting corporations: Donald Rumsfeld was so wrong.

The beauty of the approach to new rights as human rights is that according to some of its advocates it doesn’t have to rely on new legislation – much like Jimmy Stewart woke up one morning and discovered to his amazement that he had been speaking prose his whole life – some day soon we may wake up and find that vague human rights declarations bind nations to grant authors new, formidable rights. Like Winston Churchill, I say we must oppose this effort with everything we have:

We shall go on to the end, we shall fight in France,we shall fight on the seas and oceans,we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be,we shall fight on the beaches,we shall fight on the landing grounds,we shall fight in the fields and in the streets,we shall fight in the hills;we shall never surrender

“Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Article 19 of the Convention states, “Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” And Article 27(1), which proponents of copyright as a human right do not cite in favor is Article 27(2), reads, “(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

Article 15(1)(c) of the United Nations Covenant on Economic, Social and Cultural Rights reads: “The States Parties to the present Covenant recognize the right of everyone: […] (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” But neither of these lofty statements requires implementation in any specific form, and for good reason: that was the job of the Berne Convention. Nor do they forbid any exceptions to the rights; phrased more accurately, they do not state how far the author’s rights must go.

On November 21, 2005, the UN High Commissioner for Human Rights issued a document (called General Comment No. 17) on Article 15(1)(c), available here.

The document is a call to arms by fellow travelers, one of whom appears to be Professor Graeme Austin of the University of Arizona law School. In a paper authored with a law student at the school, and posted here on ssrn.com, Professor Austin tries to make the case for copyright as human right. Here I face a problem: even though the paper has been posted on ssrn.com and is accessible to anyone around the world, and may be freely downloaded from that site, there is the following legend on the bottom of every single page: “Graeme W. Austin, Copyright Law Reform Through a Human Rights Lens. Working draft: please do not quote or cite without permission. To be published in: Intellectual Property and Human Rights (Paul Torremans, ed. Kluwer Law International 2008). I fear I may have already contravened the legend merely by quoting it. What should a conscientious person do when faced with such a dilemma: a freely available work that the author has tried to make not citable or quotable from? Is doing so bad manners, copyright infringement, or, dare I ask, a violation of human rights? This last possibility would be ironic since Professor Graeme attempts to justify treating copyright as a human right in part by asserting concerns over censorship of authors (see pages 13-14), but as in all paeans by maximalists, there is also only one author, the copyright owner who claims foul, even if crying foul suppresses other authors; those other authors either are not authors or are a subspecies of authors who are not entitled to human rights.

Professor Graeme also trots out the old saw of protecting what he calls creators’ vulnerability; we are told attacks against authors, both blatant and covert continue today, although none of the examples cited have a thing to do with copyright issues. (see pages 11-14. Again, only one type of author is vulnerable; those authors who have been subject of oppressive claims of infringement by other authors in an effort to stifle them are apparently not authors or are a subspecies of authors who are not entitled to human rights.

The purpose for asserting a human right of copyright is clear enough though: to avoid the meager limitations and exceptions that exist, and to avoid any sort of check on copyright by messy theories of instrumentalism, instrumentalism being the theory that copyright is designed to serve a socially useful purpose, as compared to vesting copyright owners with the unfettered right to stop all uses of their work. Lest readers think I am overstating this, I will do what the legend on each page says I shouldn’t do, quote from the article. I do this not to make a point about the legend, which I find obnoxious, but because I cannot criticize Professor Austin’s article without doing so: the passage in question is so remarkable that it must be read, for in it he expresses quite clearly the human rights agenda. Here it is (pages 8-9):

Considerable embarrassment for the human rights agenda might be caused if a human right to intellectual property were understood as coinciding exactly with the :instrumentalist” intellectual property rights protections required by the TRIPS Agreement. Rather than providing a source of limiting principles, human rights could instead establish a basis for assertions of requirements for stronger protections than are provided by existing intellectual property laws. If human rights “trump” intellectual property law, their power to constrain intellectual property may be undermined if human rights law itself requires protection of intellectual property.

That last sentence is an oxymoron, and he later acknowledges (quoting again!,for the same reason, here from pages 34-35):

[L]egal obligations relating to creators; human rights do not of course enjoy the same dispositive ‘bite’ as specific obligations in the international intellectual property regime. But creators’ human rights should have at least some, and perhaps powerful, normative claims that should be reckoned with in the context of domestic law reform agenda. Acknowledging creators’ human rights may deepen our understanding of the implications of law reform deliberations.

So what are the human rights in question: fish or fowl, real rights in the sense of obligations that are binding on states, or are lofty statements like those in the U.S. Declaration of Independence that express principles but not law. And what are the rights at issue any way? Would they reach my quoting in this blog against the author's legend? I can’t say I know, but I do know that they would not, according to the article, be subject to the U.S. constitutional objective of promoting the progress of science: no such grubby aspirations for human rights advocates!

At this point one might sit back and say, ah idle academic prattle. Not so, arguments are being made in EU courts on the issue, and in the recent UK Lord Triesman follow up report to Gowers, this remark is made in paragraph 37:

Ministers will be required to make a statement in accordance with section 19 of the Human Rights Act of 1998 that the provisions of any amending instrument are, in their view, compatible with the European Convention on Human Rights (“ECHR”). The primary relevant ECHR consideration is whether Article 1, Protocol 1 ECHR is engaged. We will need to consider this once the proposals are developed following this consultation and will comment further when we consult on the draft statutory instrument.How, for example, will permissible limitations and exceptions work out with the famous three-part test, or parodies, if as Professor Austin advocates, the instrumentalist approach to copyright as a human right is not employed: so what if the use doesn’t harm the market; all that matters is that the authors’ dignity has been impaired. Indeed, in the U.S., a prominent scholar at a New York City University opposed permitting fair use to act as a defense to the artists’ rights granted in the 1990 Visual Artists Rights Acts. Fortunately, I convinced Congress otherwise, but these and other issues will be raised again if the human rights approach gains traction.

So, yes, intellectual property is a human right, and this means those who make or purchase it have a fundamental right to do with their own property what they wish, whether to create copies or derivatives, and to choose whether to publish them or not.

No-one should be given the privilege of suspending the liberty of the people to their own property whether as a commercial incentive, favour, or anything else.

Liberty is justly constrained only by the rights of others, to liberty, truth, privacy, and life.

The paragraph in the Gowers response about making a declaration of ECHR compliance is a new and interesting feature of British law post-Human Rights Act; it applies to all measures without regard to the issue.

It's essentially a mandatory rights-proofing exercise and the ECHR provisions cited are property rights (in the first protocol) and no more, which again is very familiar for any legislative proposal that looks vaguely like economic-regulation or having any financial impact. So, in the context of the other developments you cite, I suppose that is mildly positive news, in that it is the potential negative impact on "property human rights" (which is familiar and at least honest) rather than "expression and culture human rights" (which is untested and potentially dishonest, as you explain above).

Well, that would be the fourth generation of human rights. When it comes to opposing I think that "civil disobedience" is the keyword.

As J.P. Barlow once said:"Sooner or later they’re dealing with such a massive level of civil disobedience that they have to address it"

And maybe a little bit off-topic but..."One reason for the bustle was that over large parts of the continent other people preferred to make money without working at all, and since the Disc had yet to develop a music recording industry they were forced to fall back on older, more traditional forms of banditry."

Rights in intangibles tend to be discussed in overlapping dialectics. The first one is economic: it's based on the cool detached microeconomic calculus of incentive weighed against the baneful effects of monopoly.The second is moral: it's based on deeply emotional responses to situations that are rooted in ideas of selfhood, fairness, community, and pride.

Each dialectic is complex. But weighing the results of one against the results of the other is inevitably subjective. What is needed is that ineffable but real attribute: good judgment.

The Human Rights approach is founded upon a naivete about itself that strongly suggests that good judgment will be in short supply.

Considerable embarrassment for the human rights agenda might be caused if a human right to intellectual property were understood as coinciding exactly with the "instrumentalist" intellectual property rights protections required by the TRIPS Agreement. Rather than providing a source of limiting principles, human rights could instead establish a basis for assertions of requirements for stronger protections than are provided by existing intellectual property laws.

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What I think makes this paragraph striking is the way it construes the "human rights agenda" as if it were not instrumentalist in nature. I'm not sure I'm ready to accept that human rights law's directive isn't (and shouldn't be) pragmatic.

One wonder if this approach, which would take copyright so far out of the general public understanding about it, and so far afield from areas where the public is sympathetic to author concerns (No quoting! No citing! No parody!), that it might provoke the final backlash that various people have been predicting for years. If so, maybe a silver lining.

On an international basis, I'm wondering if the progenitors of this approach ever considered how countries with questionable humans rights records to accept this new approach to IP rights. Countries with a propensity to ignore human rights issues (due to political or cultural reasons) already have trouble dealing with IP as an economic right that only indirectly benefits the governing authorities. To position it as an inviolable human right will unnecessarily thicken the plot and cause even more resistance to IP rights in most of the developing and least developed worlds.

As for the theory itself, the blurring of the line between the protection of the freedom to express and the protection of that expression can only be of detriment to each of these fields. Human rights arguments will be diluted because they have to accomodate economic concerns arising from IP rights and their exploitation, and economic rights arguments will be unnecessarily infused with emotional and moral barriers. The purity and rationale of each approach would be lost.

I just happened to be looking into this issue recently. I think that the General Comment from 2005 is actually bad news to proponent of the IP-rights-as-human rights line. (There is also an earlier a Committee Statement on the same issue, here, http://www.unhchr.ch/tbs/doc.nsf/0/1e1f4514f8512432c1256ba6003b2cc6/$FILE/G0146641.pdf.)

The Committee conducted a doctrinal line-drawing, pointing out to some fundamental distinctions between human rights and intellectual property. Whereas human rights are “timeless expression of fundamental entitlement of the human person” and safeguard the “personal link between authors and their creation” - intellectual property rights are “generally of temporary nature, and can be revoked, licensed or assigned to someone else.”

The Committee adopted a kinda utilitarian perspective on intellectual property, which is perceived “first and foremost [as] means,” and as being “[ultimately … a social product [having] a social function.” Intellectual property law is said to be “primarily protect[ing] business and corporate interests and investments.” Though IP law and the rights stipulated in Article 15.1(c) ICESCR may cover common territories, a perfect overlap was rejected outright.

Further, as to the substantive content of authors’ rights within the purview of human rights law, the Committee opines that only natural persons enjoy Article 15.1(c) protections, and that the human right securing material interests extends only to the *basic* material interests of authors that are necessary to enable an *adequate* standard of living. Protection to the material interests of authors under Article 15 ICESCR is thereby undermined and significantly conflated with the general protection to property under other human rights norms.

I quote:“In striking [authors v. public] balance, the private interests of authors should not be unduly advantaged and the public interest in enjoying broad access to their productions should be given due consideration. States parties should therefore ensure that their legal or other regimes for the protection of the moral and material interests resulting from one’s scientific, literary or artistic productions constitute no impediment to their ability to comply with their core obligations in relation to the rights to food, health, education, as well as to take part in cultural life and to enjoy the benefits of scientific progress and its applications or any other right set out in the Covenant.”

I wont bore you with the rest, but only mention that facilitating access to information by members of the public is actually, to some extent, a core obligation under the ICESCR! (this is actually a far more interesting and academically changing question.) Specifically, state parties have a “duty to prevent that unreasonably high costs for access … to schoolbooks and learning materials, undermine the rights of large segments of the population to health, food and education.” – That was considered an universal human rights with affirmative force.

I've recently read an article by Karl Fogel at The Promise of a Post-Copyright World. The author explains there the origins of the copyright. Once you know how it all started and what was the original intention behind introducing the copyright - no, it's not protection of authors - you're no longer surprised by the crazy things happening now related to copyright legislation.

It seems I've posted a broken link in my previous comment. A working link to the Karl Fogel's article "The Promise of a Post-Copyright World" is here.http://www.questioncopyright.org/promiseIt doesn't seem to work without the leading www. Sorry.

About Me

This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.